The Iron Curtain closes - Russia's anti-LGBTI adoption agenda

A few months ago, I looked in one of my blogs at Anglo-Russian intercountry adoption developments.  This followed the vote in the Commons in this country in favour of marriage equality.  In response, Russian officials warned that there might be consequences for British nationals seeking to adopt Russian children.

It turns out that wasn’t just sabre-rattling.  True to their word, the Russian parliament adopted a bill on support for orphaned children in its third and final reading in late June 2013.  The new law imposes a ban on the adoption of Russian national children by same-sex foreign couples.  Head of the parliamentary Committee on Security and Resistance to Corruption, Irina Yarovava, said:

"The decision to prohibit foreign same-sex couples from adopting Russian children is a measure to ensure the children’s safety and constitutional rights.

"Attempts to simulate the institution of the family and demands for allowing adoptions by same-sex couples are unnatural from the standpoint of the laws of nature and the institution of family law."

On 3 July 2013, President Vladimir Putin signed off on the legislation.  The Kremlin said in a Statement that:

“the measure is aimed at guaranteeing a harmonious and full upbringing for children in adoptive families.” 

For good measure, the new law also forbids adoptions by unmarried individuals who live in countries with laws that permit same-sex unions.

Russia’s recent track-record on LGBTI issues is hardly a commendable one, with parliament voting in mid-June almost unanimously to pass a law to punish the “promotion” of homosexuality with fines and gaol terms.  The law bans what it calls the “propaganda of non-traditional sexual relations” to minors. The word “homosexual” was removed from the text but in parliament one of the law’s backers said “traditional” relations were between a man and a woman.

“It outlaws the spreading of information aimed at forming non-traditional sexual attitudes among children,” said Duma deputy Elena Mizulina.  She also confirmed that it would become an offence to say that gay and straight relationships were equal, describing that as “a distorted perception”. 

Under the law people can be fined up to a maximum of over €2,000 if the offence is committed via the media.  Foreigners who promote homosexuality can be fined, detained for 15 days and deported.

That bill will now go to the Russian Senate before being signed into law by President Vladimir Putin – steps considered to be a formality.

Back to adoption:  according to New York’s Russian Children’s Welfare Society, there are currently more than 700,000 orphans in Russia.  This figure is increasing annually at a rate of 113,000 children.

Some of those hundreds of thousands of vulnerable children will be denied a chance to experience a loving family environment, on account of a prejudice about how worthy or otherwise prospective adopters are based upon their sexual equipment.  A view which runs contrary to all credible studies on topic, which consistently show the sexual orientation of adoptive or foster parents makes precisely no difference to the quality of the parenting they provide (see, for example, Cambridge University’s Centre for Family Studies’ research from March 2013).  

The real tragedy is that, whilst mewling about guaranteeing children a harmonious and full upbringing, the rule which excludes a particular group of individuals as potential adopters achieves just the opposite.  It only serves to narrow the pool of potential adopters and to ensure that vulnerable children in need of a stable family placement are denied one. 

When intercountry adoptions go wrong...

Various reports today from the US tell of the awful predicament of a South Korean baby and her adoptive parents.

At the centre of this intercountry adoption gone wrong is Baby Sehwa.  Born in South Korea in June 2012, she started living with her adoptive parents - Jinshil and Christopher Duquet - within days of her birth.

The Duquets – both US nationals – then sought to bring Sehwa into the USA and to their home in Chicago.

It was when Jinshil Duquet tried to enter the US with the baby that authorities at O'Hare International Airport found she lacked the required paperwork for an adoption.

Proceedings were then brought involving the South Korean government and US Department of Justice, running in parallel in both the local and federal courts.  The adoptive parents were accused of circumventing South Korean adoption laws.  For their part, the Duquets said they relied on bad legal advice and thought they were participating in a lawful private adoption.

Last Thursday came the decision that Sehwa must be returned to South Korea.  She will be placed with a foster family there for adoption locally (as opposed to being returned to an orphanage).  Her birth mother and grandparents relinquished parental rights to the Duquets, and are not seeking her return to them.  The court heard that the birth mother lives at a homeless shelter for unmarried mothers and has another child. 

Sehwa’s fate was sealed by the Duquets’ failure to observe South Korean law, which requires placement of a child through a licensed adoption agency.  Jinshil Duquet, a South Korea native who moved to the US as a child, told the US court she had learned about the baby through a pastor with ties to her family.  She contacted immigration lawyers in Chicago, who put her in touch with a South Korean lawyer who said he could arrange for a private adoption.  The Duquets had earlier adopted an older daughter from South Korea by going through an agency but were told they were too old under South Korean law to follow the same procedures again.

The Duquets argued unsuccessfully that, despite their mistakes, it was in Sehwa's best interests to remain with them as she had done for the first nine months of her life.

Sehwa is due to travel back to South Korea tomorrow.

Her case provides a stark demonstration of what can go wrong in transnational adoption cases, and (when they do) how potentially catastrophic the consequences for the adopters and child.

Applying the lessons learned from this US case locally, international adoption involves family law issues in parallel with questions of criminal law and immigration practice.  For example, it is a criminal offence in some circumstances for adopters living here to try to adopt a child abroad, or to bring a child to the UK to adopt him or her here.  The penalties for the offence may include a fine or up to a year in prison.  The immigration issues relate to obtaining entry clearance and nationality for the adoptive child.  

Failure to be aware of this complex interaction might have unexpected and disastrous consequences. 

There are several international treaties, obligations and mechanisms for determining whether an adoption order made abroad is capable of being recognised elsewhere.  The UK, for example, automatically recognises some countries’ adoption orders.  Other countries’ are not, and further court proceedings will be required to obtain recognition of the foreign order. 

One of these treaties is the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.  The US and the UK are both signatories to that agreement, which is intended to standardise the approach to transnational adoption to protect the rights and best interests of the children at the centre of the process.  South Korea is not a signatory.  Had it been, and had the Duquets adopted Sehwa in accordance with the Convention, she would not face the wrench of being separated from the only parents she has ever known. 

The moral of this cautionary tale is those considering intercountry adoption must take advice.  Take advice from a specialist in intercountry adoption both here and in the other country.  Take it early.  By doing so, situations like the Duquets can be avoided!

LGBT Adoption Round-Up

You know what it’s like:  you wait around for ages for a legal development in the arena of LGBT adoption, and then half a dozen come along all at once.  In this blog, I look at some of the more significant news that has emerged over the past fortnight from around the world affecting alternative adoptive families. 

Puerto Rico

The Supreme Court, in a 5-4 decision, affirmed (20 February 2013) a ban on adoption by same sex parents. 

The court was considering the case of a Puerto Rican lesbian who sought to legally adopt her partner's child.  The couple challenged a local law that "bans the adoption of a minor if the biological mother doesn't give up her rights, unless the couple consists of a man and a woman."

Puerto Rico’s highest court concluded that that law was valid, as Puerto Rico's constitution “does not prohibit discrimination based on sexual orientation.”  The court acceded to arguments that the “traditional family” comprising a father and mother “best protected the well-being of minors”. 

Interestingly, the court's president, Federico Hernández Denton, disagreed with the majority decision.  He called the ruling unconstitutional in his minority Judgment.  The three other dissenting judges said they did not believe the constitution prohibited adoptions by same-sex couples, and that they would have liked the State to recognize second-parent adoption. 

The Russian Federation

According to media reports, the Russian State (20 February 2013) called the adoption of a Russian boy by a US woman who revealed she was gay only after the adoption concluded a “serious worry.”

Konstantin Dolgoy, Russia's human rights envoy, said the boy now is facing circumstances with his gay American family that are “harmful to his psychological health.”

The woman was living in a same-sex relationship, but decided not to disclose this during the adoption proceedings.  Her sexuality and relationship status only came to light when she and her partner separated several years later, and a dispute arose about custody of the child. 

Dolgoy’s homophobic rant continued thus:  “[The boy] was sucked into an argument over a relationship that was quite dubious from the moral point of view.  We believe that [his] situation is unacceptable and harmful to his psychological health.”

France

France’s National Assembly (on 12 February 2013) adopted, on first reading (in a 329-to-229 vote), a bill affording marriage equality to same sex couples. 

The bill also opens up adoption to married people of the same sex, whether it be the joint adoption of a child by both spouses or the adoption of one spouse’s child.

The draft legislation includes adaptation measures, notably for determining the adopted child’s surname, since the current rule – whereby the child is given the father’s surname unless the parents decide otherwise – is inappropriate in the case of same-sex couples.

The bill now goes to the Senate for consideration, which is controlled by President Francois Hollande’s Socialists and his political supporters. 

"This law is a first necessary step, a social evolution that benefits society overall," said Socialist representative, Corinne Narassiguin, announcing her party's support for the measure. "Opening up marriage and adoption to homosexual couples is a very beautiful advance. ... It is an emblematic vote, a vote that will mark history."

Germany

Germany's Federal Constitutional Court gave its decision (19 February 2013) in a case about gay couples’ adoption rights.

The case concerned two women, one of whom had adopted a Bulgarian child some years earlier.  The other woman sought permission to adopt the child, which was denied.  The law permitted a civil partner to adopt his or her partner’s biological child, but not their stepchild or adopted child. 

The court held that a German constitutional provision that "marriage and the family shall enjoy the special protection of the state," could be used to justify ruling out same-sex partners adopting the other partner's adopted child.

 

Presiding Judge Ferdinand Kirchhof said:  "In marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law."

The court directed the government to draw up new legislation by June 2014.

The decision means that same-sex couples can now adopt the same child sequentially (that is, at different times to one another) in Germany.  Paradoxically, however, they still cannot adopt children together as a couple.

Austria

In the case of X and Others v. Austria, the European Court of Human Rights ruled (19 February 2013) that Austria had violated the European Convention on Human Rights.

The case concerned the inability of a woman in a same-sex relationship to adopt her long-term partner’s son without severing the birth mother’s legal ties with the child (that is, a second-parent adoption).

The Grand Chamber of the court in Strasbourg (comprising 17 Judges), found there was no persuasive reason to treat the couple differently from an unmarried heterosexual couple in the boy's adoption.  Under Austrian law, allowing the woman to adopt the boy would have severed his birth mother's parental rights, based on a 2006 Austrian decision that the term "parents" was intended to mean two people of different sex.

The court found that Austria had discriminated against the couple.  It ordered the government to pay them €10,000 in damages and about €28,500 in costs and expenses.

   

So, some progress balanced against some backsliding.  As the news from Puerto Rico and Russia demonstrates, there remain a good number of stalwart bigots who cleave to the view that a parenting ability is linked to the gender of the adults to whom one is attracted and with whom one falls in love.  And all despite the decades of evidence that has been consistent in showing that gay and lesbian parents are as capable as heterosexual ones, and their children as psychologically healthy and well-adjusted as children reared by heterosexual parents.

We’ve come so far, but we’ve got so far to go…

Nyet Spasiba! – Marriage Equality puts Anglo-Russian Adoptions in Doubt

In the aftermath of the historic Commons’ vote on Tuesday paving the way for marriage equality, Russian officials have said that British couples might be precluded from adopting Russian orphans. 

Quoted in The Telegraph, the human rights envoy at the Russian Foreign Ministry said, "The British and French parliaments have legalised same-sex marriages.  This narrows the chances of citizens of these countries adopting Russian children.”

According to Russia Today, Pavel Astakhov, Russia’s Children’s Rights Ombudsman, said same-sex couples in France would not be allowed to adopt Russian children.  Presumably, the same will be true of British same-sex couples. 

He cited in support of this policy the Russian constitution’s definition of marriage as a “union of a man and a woman.”

“The official position on gay marriages is stated in Russian official documents, the family code and the constitution,” he said. “They put it straight that the marriage is a union of a man and a woman. We do not have anything else. Period.”

These proclamations follow a ban on adoption by US couples, passed in December 2012.  The justification for the ban was said to be a concern that Russian children were being abused by their adoptive parents in the US. 

Commentators believe, however, that the ban is a reaction to the US approval of a law allowing Russian officials suspected of human rights violations to be sanctioned.

 

One Russian legislator, Leonid Kalashnikov, who was not present for the vote on the US adoption ban, described the law as “vindictive”.

In a quote appearing in the Los Angeles Times, Kalashnikov said, "The Kremlin didn't really want to spoil relations with the United States but couldn't leave an unfriendly act unanswered.  So they let off steam by using the fate of thousands of orphans as a lever of political pressure."

According to New York’s Russian Children’s Welfare Society, there are currently more than 700,000 orphans in Russia.  This figure is increasing annually at a rate of 113,000 children.

Tragically, some of those hundreds of thousands of vulnerable children will be denied a chance to experience a loving family environment, on account of antediluvian views about how worthy or otherwise people might be as parents based upon their sexual equipment.  A view which, incidentally, runs contrary to all credible studies on topic, which consistently show the sexual orientation of adoptive or foster parents makes precisely no difference to the quality of the parenting they provide (see, for example, the results of a study published in November 2012 by psychologists from the University of Central Los Angeles on outcomes depending on whether adopted children were placed with gay, lesbian or heterosexual parents).

This truism has fortunately been recognised for some time in this country.  The now defunct Adoption Act 1976 did not allow same-sex couples to adopt.  This was overcome by courts making adoption orders in favour of one of the couple, in the knowledge the child would live with them both.  I was involved in several cases where this work-around was used to ensure the best interests of the child concerned were met. 

And the overhaul of our adoption laws in the form of the Adoption and Children Act 2002 confirmed that adoption orders could be made in favour of civil partners, or two people (whether of differing or the same sex) living together in an enduring family relationship. 

Nyet Spasiba indeed, Russia. 

Mixed-race Adoption under the spotlight

Earlier this week, the British Association for Adoption and Fostering (BAAF) published their results of a three-year study into mixed-race adoption placements.

The study focussed on the experiences of 72 Chinese orphans who arrived from Hong Kong in the 1960s, and who were adopted by (mainly white) British parents.

The study, the first of its kind to look at transracial adoption in Britain, asked the adoptees to talk about their experiences from childhood through to middle age.

Reported in The Guardian, common feedback included “varying levels of racism, prejudice and feelings of belonging and difference within their adoptive families and wider communities.”

Many respondents also “felt alienated” and “struggled with conflicts of dual/multiple identities and had experienced race-based mistreatment.”

For some, childhood and adolescence were particularly traumatic, with 54% saying they “felt uncomfortable” after comments about how different they looked from their adoptive family.

Around three-quarters of those studied said they had wanted to look less Chinese as they grew up, while a smaller figure said “race-based bullying” and discrimination “had a substantial negative impact on their well-being.”

The news was not all grim:  one positive outcome of the study was that the adopted orphans tended to become more comfortable with their Chinese appearance as they matured.  Researchers also noted other positive patterns in comparison to other studies of both non-adopted and adopted women, with the former Hong Kong orphans exhibiting good levels of mental and physical health, educational achievement, positive family lives and relationships with adoptive families.

The publication of the study’s results could not be more timely.  The Coalition Government is blazing ahead with proposals to make it easier for prospective adopters to adopt children from different cultural or racial backgrounds.  Education Secretary, Michael Gove, has described as “misguided” the belief that children must be matched with parents of the same ethnicity.

The Department for Education’s stated position is as follows:

“We are changing the law to ensure black and minority ethnic children – who take on average a year longer to be adopted than white children – are not left waiting in care any longer than necessary. We want them to be with adoptive families where they can thrive and realise their full potential.”

So, which view is correct?  As with all such issues, the right approach is not a binary one.  Of course children should not be left languishing in the care system whilst a search wears on for years for the absolute perfect match in terms of prospective adoptive parents.  But nor can the placement of some of the most vulnerable children ignore the importance of race and culture in mixed race adoption.  Ethnicity, culture and background help to form a young person’s identity.  It would be folly to ignore these features, as collateral damage in the rush to ensure that an adoption is concluded sooner rather than later.  The balance has to be struck between delay and ensuring that any proposed placement is the best one, taking account of the various aspects that go towards making up the child or young person affected.